Nguyen v. State
| Decision Date | 21 December 2018 |
| Docket Number | No. 112,851,112,851 |
| Citation | 431 P.3d 862 |
| Parties | Giang T. NGUYEN, Appellant, v. STATE of Kansas, Appellee. |
| Court | Kansas Supreme Court |
Christopher J. Velez, of Law Office of Christopher J. Velez, of Garden City, was on the briefs for appellant.
Tamara S. Hicks, assistant county attorney, Susan Lynn Hillier Richmeier, county attorney, and Derek Schmidt, attorney general, were on the brief for appellee.
Giang T. Nguyen filed a pro se motion under K.S.A. 60-1507, claiming multiple errors led to his 2003 convictions for felony murder and numerous other felonies, including conspiracy to commit aggravated burglary and conspiracy to commit kidnapping. It was his third such motion. The district court dismissed the motion for being untimely, for being successive, and for being noncompliant with the pleading requirements of Supreme Court Rule 183(e) (2018 Kan. S. Ct. R. 223).
Upon appeal, a panel of the Court of Appeals held that Nguyen's motion was not time barred, based upon the manifest injustice exception, because "his conviction for conspiracy to commit kidnapping is likely multiplicitous." Nguyen v. State , No. 112,851, 2016 WL 197745, at *1-2 (Kan. App. 2016) (unpublished opinion). But the panel held that the district court did not err in dismissing the motion, because it was successive and it failed to comply with Supreme Court Rule 183(e). Further, the panel rejected Nguyen's claim that the district court had failed to make the requisite findings of fact and conclusions of law to support its decision. This court granted Nguyen's petition for review. We reverse Nguyen's conviction for conspiracy to commit kidnapping; vacate the accompanying sentence; and remand the case to the district court for resentencing. With respect to the remainder of Nguyen's motion, we reverse the district court's order dismissing the motion and remand the case to the district court with directions.
The facts underlying Nguyen's convictions are recited in State v. Nguyen , 281 Kan. 702, 133 P.3d 1259 (2006), the direct appeal opinion affirming the convictions. Briefly stated, Nguyen; his brother, Nam Nguyen (Nam); and another man, Ngan Pham (Pham), forcibly entered a residence, tied up six family members, and subsequently shot and killed one family member who attempted to flee. Two days later, Nguyen voluntarily turned himself in to the authorities and confessed. He was convicted of felony first-degree murder, aggravated kidnapping, aggravated burglary, conspiracy to commit kidnapping, conspiracy to commit aggravated burglary, and five counts of kidnapping. The district court sentenced Nguyen to serve a prison term of 165 months for aggravated kidnapping consecutive to a hard 20 life sentence.
Nguyen directly appealed to this court. The issues raised and our accompanying holdings were summarized as follows:
The opinion in Nguyen's direct appeal was filed May 5, 2006. The next month, on June 16, 2006, we filed an opinion in the direct appeal of Nguyen's codefendant, Pham. State v. Pham , 281 Kan. 1227, 136 P.3d 919 (2006). Pham had challenged his conviction for conspiracy to commit kidnapping as being multiplicitous with his conviction for conspiracy to commit aggravated burglary. Finding that "there was only a single continuing conspiracy," we reversed Pham's conviction for conspiracy to commit kidnapping and vacated the sentence on that count. 281 Kan. at 1262, 136 P.3d 919.
On January 16, 2007, Nguyen filed his first pro se K.S.A. 60-1507 motion. That motion is not included in the record on appeal, but an earlier memorandum decision from the district court noted that the motion raised the following issues:
"(i) whether Defendant was forced to rely on an interpreter who spoke in a culturally different dialect, which violated his 5th, 6th and 14th amendments (sic); (ii) whether the State failed to prove all of the elements of aggravated burglary which constituted the underlying felony necessary to sustain its conviction of felony murder (sic); (iii) whether [the district court] violated Defendant's right to a fair trial when it denied him an opportunity to exercise individualized voir dire; (iv) whether [the district court] contributed to the trial counsel's performance being ineffective in violation of Defendant's 6th amendment (sic); (v) whether the information/complaint was fatally defective because it failed to charge all of the elements necessary to charge the crime of aggravated burglary; (vi) whether the State failed to prove guilt for the crime of aggravated burglary, as being the underlying felony to sustain a conviction for felony murder; (vii) whether the performance of trial counsel for Defendant was inadequate and ineffective for failing to conduct an adequate pretrial investigation, for failing to make proper contemporaneous objections, for failing to conduct adequate voir dire examinations, for failing to file a proper motion for judgment of acquittal after the jury returned its verdict, and for failing to present an adequate closing argument; (viii) whether the State's jury selection process violated Batson in denying Defendant the right to select jury members from a fair cross section of the community; and (ix) whether Defendant's appellate counsel was ineffective in failing to raise viable issues on appeal."
Eleven days later, the district court summarily denied Nguyen's motion "for failure to set forth any substantial issues of fact or law with regard to [his] criminal case." Nguyen filed a notice of appeal of the denial of his K.S.A. 60-1507 motion. According to Nguyen's motion to docket appeal out-of-time contained in the Kansas Appellate Clerk's Case Tracking System, he was appointed appellate counsel in April 2007, but appointed counsel failed to take any action for approximately two years. Thereafter, on April 23, 2009, the Court of Appeals denied Nguyen's motion to docket his appeal out-of-time, thereby foreclosing appellate review of the district court's summary denial of the first K.S.A. 60-1507 motion.
During this period, in 2008, this court filed an unpublished opinion in the direct appeal of Nguyen's other codefendant, Nam. In that decision, we reversed Nam's conspiracy to commit kidnapping conviction as multiplicitous, based on the same rationale employed in Pham's appeal. State v. Nguyen , No. 964,30, 2008 WL 360635, at *2 (Kan. 2008) (unpublished opinion).
On December 31, 2009, Nguyen filed his second pro se K.S.A. 60-1507 motion. This motion is also not included in the record on appeal, but the Court of Appeals' opinion affirming the district court's denial of the motion noted that the motion raised the following issues:
"(1) he was not informed of his Miranda rights in a Vietnamese dialect he could understand, rendering his custodial statements to law enforcement inadmissible; (2) the charging document was defective because it alleged aggravated burglary without specifying an underlying felony; (3) trial counsel was ineffective in failing to interview Pham in a manner that would have produced exculpatory evidence, in failing to adequately research the issue of different Vietnamese dialects, and in failing to present an adequate argument for judgment of acquittal; (4) he was denied a fair and impartial trial by a jury of his peers because there were no Vietnamese or Southeast Asian people on the jury; and (5) Pham retracted his statement to law enforcement regarding Nguyen's involvement in the matter and this evidence was either not disclosed by the State or Nguyen's attorney failed to explore this possibility of exculpatory evidence." Nguyen v. State , No. 104,057, 2011 WL 781525, at *1 (Kan. App. 2011) (unpublished opinion).
Following a review of the official court file, records, and transcripts, the district court denied Nguyen's second motion in February 2010, without a hearing. On March 4, 2011, a panel of the Court of Appeals affirmed the district court's summary denial of Nguyen's second K.S.A. 60-1507 motion. Nguyen , 2011 WL 781525, at *2.
In March 2012, Nguyen attempted to file a third K.S.A. 60-1507 motion, which was identical to the motion now before us. The district court did not file the motion, but rather returned it to Nguyen with a letter from District Judge Michael Quint. The letter advised Nguyen that he needed " Judge Quint further informed Nguyen that there was "no manifest injustice in any of the previous rulings against [him] and the Court refuse[d] to file [his] latest Motion as being a duplication of [his] previous filing."
On August 28, 2012, Nguyen was successful in getting his third pro se K.S.A 60-1507 motion filed, which raised the following 14 issues:
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